At some point, cities will have to deal with the necessity of imposing employee discipline. It is an unpleasant task for both the city and the city employee and can involve a range of emotions which naturally follow when the subject of discussion is the employee's "substandard performance." The sensitive nature of the process makes this area one which is especially susceptible to allegations of unfair employment practices which carry with them the potential for substantial financial liability. In order to prevent this from happening, the employer must become familiar with the applicable law, city personnel policies, as well as understand the rights and obligations of the employer in a given situation, and know when to consult legal counsel. Doing so will prevent the city, as the employer, from losing control of the employment relationship and minimize the city's liability exposure.

Employees in the Commonwealth of Kentucky are terminable "at-will" unless they fall into an exception to the employment at-will doctrine. Next week’s article will review the doctrine of employment at-will and the exceptions thereto, and give a brief discussion of some of the liabilities commonly encountered by cities.

So assuming that the employee is at-will, one of the most important things that a city can do to prevent liability is to follow the progressive discipline section of their personnel policies and to document each and every step. And, keep in mind that discipline should be viewed as a means to correct bad behavior not as a means to terminate an employee.

If termination is inevitable get advice from your city attorney. But if your city attorney needs assistance, keep in mind that members of KLC and KLCIS have access to valuable services and resources that will help you stay on track. By taking advantage of these member benefits before you take action, you can protect city resources and avoid unnecessary liability.

These resources include the KLC legal staff at 1-800-876-4552. We can provide you with sample personnel policies and copies of applicable laws, as well as information about common employment issues related to FMLA, ADA, the Police Officers Bill of Rights, civil service, and much more.

In addition, if you are a member of the Kentucky League of Cities Insurance Services, your city may also have access to additional legal defense counsel to help avoid legal liability. When contacting the KLC Legal Department with your personnel issues, please make sure to tell us if you are a KLCIS customer so we can help you determine whether your coverage includes eligibility for this liability defense program.

This time of year, many cities close or consider closing city hall due to weather related issues. The next consideration is whether they have to pay employees for the time that the offices are closed. Basically, it depends on whether the employee is exempt or non-exempt.

If the employee is a non-exempt employee (eligible for overtime) and the city office closes because of the weather, and the employee doesn’t work on those days, the city is not required to pay the employee for those days. See Fact Sheet #72: Employment & Wages Under Federal Law During Natural Disasters & Recovery(http://www.dol.gov/whd/regs/compliance/whdfs72English.htm), which states that the FLSA “does not require employers who are unable to provide work to employees due to a natural disaster to pay non-exempt employees for hours the employees would have otherwise worked.” The same is true if a non-exempt employee chooses not come to work because of the weather when the city offices are still open.

Also note that even if you pay a non-exempt employee for the time the office was closed, the payment is not considered in the calculations for overtime. Calculations for overtime only include hours actually worked.

If this is an exempt employee (salaried and not eligible for overtime) and they work any portion of the week, the employee must be paid the full salary for the week, even if the office closes because of the weather (See 29 C.F.R. § 541.3 section 13(1)(a)). Cities can, however, require that the employee use vacation time for the time off due to bad weather. (But if the employee is out of vacation days, the city cannot dock the employee’s pay.) See 2005 DOL opinion http://www.dol.gov/whd/opinion/FLSA/2005/2005_10_28_46_FLSA.htm

If an exempt employee chooses not to come to work because of the weather and the city offices are open, an employer can dock the pay for a full day because the employee is not considered “ready, willing, and able to work.” If the exempt employee only misses part of the day, the city cannot dock any pay, but can require the employee to use vacation time. In addition, under the FLSA if an exempt employee performs no work whatsoever in a given workweek, the city does not have to pay any wages for that week. This would be the case even if the city chooses to close for the entire week. (See 29 CFR § 541.602.)

The city also needs to think about the morale problem they could face if they pay exempt workers but not non-exempt ones. In addition, including inclement weather policies in the personnel manual, as well as reviewing these policies with employees periodically, will prevent any surprises and confusion when bad weather looms.

For more information or sample policies on this or any other personnel related matters contact Andrea Shindlebower at ashindlebower@klc.org.

Over the next few weeks, I will be reviewing personnel files. This series will include such things as how to maintain them, what needs to be maintained and what documents are subject to the Open Records Act. We will review some of the legal requirements in regards to personnel files as well as several practical tips.

First, let’s look at some issues to be aware of when creating a personnel filing system. Personnel files can be maintained in paper form or maintained electronically. No matter what format is used, the preservation, safekeeping and retention requirements that you need to know are the same.

If the city maintains the files electronically, you need to ask these questions:

Does the city have a good document management system?

Has the city established clear guidelines regarding which employees have access to which files, as well as when and where they can review?

Has the city implemented verified security and password protections to ensure access is provided only to those with a need to know?

Does the city have a backup system in place to ensure data is not lost?

Does the city have a secondary backup system in the event both the software and its backup are destroyed?

Has the city trained users on how to properly use and safeguard information in the document management system?

Does the city have a policy in place regarding the steps to be taken in the event there is a breach of security?

Do you know what information is subject to Open Records, who has the authority to access the records when a request is submitted and what the law is in regards to response times?

Is this information contained in your city personnel policy?

Or, if the city maintains paper files of personnel records, you need to ask these questions:

Are the personnel files maintained in a locked and secure cabinet?

Has the city established clear guidelines regarding which employees have access to which files, as well as when and where they can review?

Have all documents that contain protected information been removed from the main personnel file? Remember, that documents which include medical information, Social Security numbers or other protected class information such as age, race, gender, national origin, disability, marital status and religious beliefs should not be accessible to supervisors, or anyone making an open records request.

Are personnel files organized in a logical way so that information within them is easy to find? The two most common practices are to maintain files in chronological order or to have files with different sections for different types of documents such as performance information and training documents.

Do you know what information is subject to Open Records, who has the authority to access the records when a request is submitted and what the law is in regards to response times?

Is all of this information contained in your city personnel policy?

How long you keep the records that you have maintained is determined by the Kentucky Department of Libraries and Archives (KDLA). The searchable Record Retention Schedules can be found on the KDLA website. The website also contains important information on the proper destruction of records.

Next week will look at the law regarding what should be in what files, as well as some good practice tips. For questions on this or other personnel matters, contact Andrea Shindlebower Main, Personnel Services Specialist, with the KLC Legal Department